Chapter 2

THE CONTEXT FOR DECRIMINALIZATION: DEFINING THE BOUNDARIES OF REFORM*

Criminal codes in the United States do not rest on any single philosophical premise; instead the various and oft-conflicting ideologies of punishment are interwoven in a sometimes confusing array of proscriptions, penalties and procedures, as each generation's compromises are superimposed on the accommodations reached in the years and decades gone by. For this reason, criminal code revisions which are offered in the name of general philosophical principles tend to make legislators uneasy ; they naturally wonder what other changes would be mandated by consistent application of the same principle.

The lesson to be learned from this is that reformers who aim to repeal criminal prohibitions or to achieve major revisions in penalties or sentencing structures must be careful to mark out clear and definite boundaries around the changes they propose. Indeed, the case for any specific reform can be made immeasurably more persuasive if it can be shown to be consistent with a variety of philosophical predispositions.

In the context of reforming the marijuana laws, for example, the battle will not be won by invoking the principles of John Stuart Mill. The inevitable need to qualify the libertarian principle, which affords such enlightening debate in an academic forum, generates only confusion and skepticism in the legislative chamber. Another set of questions, inevitably generated by proposals to reform the marijuana laws, concerns its implications for other "drug" control laws on the one hand and for alcohol and tobacco regulation on the other. Do the arguments for decriminalizing marijuana possession also apply to possession of other prohibited substances such as heroin and LSD? If not, why not? If marijuana is less harmful than alcohol, why shouldn't it be "legalized" and distributed through a regulatory scheme? Or, conversely, why shouldn't alcohol prohibition be reinstituted?

These are not easy questions. But the reformer must be prepared to answer them and to offer legislators the opportunity to settle on different answers without undermining their support for decriminalization. Let me elaborate on these themes by demonstrating why decriminalization is consistent with, and maybe even required by, the most conservative paternalistic approaches to drug abuse policy. This will also show why a liberal reformer need not be reluctant to support a "discouragement" policy and why cautious legislators need not be fearful of the implications of decriminalization.

Philosophical Premises

Several "libertarian" philosophical premises are frequently expressed in support of this society's current posture toward alcohol and tobacco, and might be thought applicable to marijuana:

—The decision to use a recreational intoxicant is a personal moral decision in which the government has no authority to interfere.

—The decision to risk one's own health through use of a psychoactive substance is a personal decision; the government has authority to intervene only if the use of the drug has incapacitated the user or has induced behavior causing harm to others.

Under this set of assumptions, often identified with Mill,' the government has no authority to suppress the consumption of marijuana. Instead, the only legitimate role of the government is to provide disincentives for (1) drug-induced behavior posing risks to others and (2) intensified patterns of use which, in the aggregate, impose burdens on society's health care and welfare systems.

Most legislators and others in policy-making roles eschew the libertarian premise mainly because they recognize that it is antithetical not only to all drug abuse prohibitions but also to many proscriptions rooted mainly in moral preferences, such as bars on obscenity and on deviant sexual conduct between consenting adults. In fact, merely by quoting Mill, a reformer sometimes hurts his case, a case which, as will be shown below, can be persuasively tied to premises with which most legislators are more comfortable. Of course, even if the reformer does not wear libertarian stripes on his sleeve, he should nonetheless remind the legislators that the man-onthe-street would probably trace his instinctive opposition to alcohol prohibition to a libertarian philosophy, and that a principle is not a principle at all if it is not applied consistently.

That aside, among legislators who reject the libertarian premises, some may subscribe to either of the directly contrary "authoritarian" premises frequently proclaimed in response to Mill :

—The government may aim to suppress and discourage use of any intoxicant considered immoral by a majority (or a consensus) of the populace.

—The government may aim to suppress and discourage any behavior which could be harmful to the individual.

Under either of these more paternalistic premises, it is legitimate for the government to try to discourage marijuana consumption even if it chooses, for pragmatic reasons, not to take a similar stance toward alcohol and tobacco. Similarly, whether the government would be prudent to suppress marijuana use depends on political, economic and cultural factors. (Ultimately, these "prudential" considerations may also be crucial in determining how a "discouragement" policy should be implemented, a matter addressed below.)

Most legislators and policy-makers are uncomfortable with categorical philosophical principles of either type. (This may be a distinguishing mark of an intellectual climate hostile to absolutes and hospitable only to notions of relative costs and benefits.) If asked to articulate a principle by which their decisions would be guided in drug control matters, most legislators would probably subscribe to a "balancing" utilitarian stance under which the legitimacy of government intervention would be dependent on the magnitude and gravity of the harm associated with use of the drug. Implicitly, legislators adopting this "intermediate" view would reject the notions (1) that government could aim to suppress use simply on moral grounds and (2) that a mere risk of harm to the individual justifies government intervention. This view might be articulated in any number of ways, including, for example, the following :

—Government has no authority to suppress the simple use of an intoxicant unless the medical or behavioral consequences of use involve a substantial probability of impaired individual functioning and a derivative burden on the society's health care and social service systems.

Unlike the categorical views noted above, this "balancing" philosophical view demands sophisticated empirical inquiry, and is equivocal in its implications regarding marijuana policy in the absence of data regarding the individual and social consequences of use. Simply put, the open question is when the impact of "excessive" use on the public health and welfare becomes great enough to justify the discouragement of all consumption, even recreational or "moderate" use, which is apparently harmless in itself.

On the basis of what we know about marijuana today, many opponents of the current laws believe that the social risk is too slight to support a discouragement policy and to justify a suppression of personal choice. On the other hand, present governmental policy2 at the national and state levels is premised on the view that the health and behavioral consequences of long-term, chronic use are sufficiently uncertain that all use should be discouraged.*

Assuming that the government may legitimately seek to suppress and discourage consumption, the question arises whether it is prudent to try to do so. For example, some argue that the use of intoxicants is inevitable, as history shows, and that society is better off, in the aggregate, if persons seeking drug-induced alterations of mood do so with marijuana instead of alcohol. Others have suggested that because marijuana directs its users inward, its widespread use might well be socially beneficial since it would trim the aggressive edges from this highly competitive society.

On the other hand, defenders of existing efforts to suppress marijuana use have speculated that heavy users of marijuana (who represent most of the public health problem) would not be drawn from the population of persons who would otherwise have been alcoholics or alcohol abusers ; instead they predict that society will bear the burden of both casualty groups. Defenders of existing policy also point out that national policy is moving in the direction of discouraging tobacco use and that national and state leaders may even want to reconsider the currect "neutral" posture toward alcohol use. This is no time, they say, for modifying the discouragement approach to marijuana.

However these opposing speculations may be assessed by those who sit in the classroom or in the family's living room, legislators must make choices now. And the plain fact is that few politicians in the Congress or in the state legislatures have indicated the slightest willingness to consider a "neutral" stance. Moreover, discouragement is mandated by this nation's international obligation under the Single Convention on Narcotic Drugs of 1961 and is the declared objective of virtually all of the nation's public health officials who have spoken on the issue—even among those who have been vigorous proponents of decriminalization. Accordingly, in the contemporary policy-making context, reformers should be prepared to assume, whether they agree or not (1) that government may legitimately choose to suppress and discourage marijuana consumption and (2) that this will remain national policy for the foreseeable future. The inquiry must then focus on how best to implement a discouragement policy.

Implementing a Discouragement Policy: Prohibition or Regulation

For present purposes, the crucial choice regarding means of implementing a discouragement policy is whether or not the government should permit the substance to be legitimately available for "non-medical" or recreational use. (Since the distinguishing feature of an approach which does permit the drug to be available outside medical channels is that the individual user is allowed to decide whether, when and why he wants to consume the drug, the National Commission referred to such schemes as those which authorize availability for "self-defined purposes.") The alternative approach, which has been in effect in this country for a half century, is to limit the "legal" market only to medical and research needs, prohibiting all other cultivation, importation and distribution. If prohibition were to be repealed and marijuana were to be legitimately available for self-defined uses ("legalized") like alcohol and tobacco now are, then the lawmaker would also have to devise a "regulatory" scheme which establishes the conditions under which the drug may legally be produced, distributed and used.

Two threshold points demand emphasis. First, regulatory approaches are not inconsistent with discouragement policies. For example, the current national objective regarding tobacco use seems to be to reduce consumption. To put it another way, a decision to discourage use does not compel a decision to prohibit availability outside medical channels. Second, marijuana will be available and will be used regardless of the legal constraints on its distribution. Current trafficking data suggest that law-enforcement officials can interdict only one-tenth of the marijuana illegally imported into this country. If domestic cultivation were increased, the ratio would be even smaller. Thus, in choosing between the two approaches, the lawmaker must compare results of use patterns under a prohibitory approach (results which are nowhere near "zero," and depend in part on the anticipated level of enforcement) with the likely results under more or less restrictive regulatory approaches (results which need not be anywhere near "100"). The scale is much narrower than is often assumed.

Proponents of legalization have argued that the "costs" of the present prohibition are substantial and could be eliminated by a regulatory system. For example, regulation of potency is now impossible as are purity and quality control. They also emphasize the fact that black-market distribution puts otherwise law-abiding consumers in touch with lawbreakers who may also be "pushing" other, more harmful, illicit substances.

Opponents of legalization argue that the public health risks of substantially-increased availability (which they consider inevitable under any regulatory scheme) are so significant that the "costs" of an unsuccessful prohibition are tolerable. This was, in essence, the position taken by the National Commission on Marihuana and Drug Abuse in, 1972, when it rejected a regulatory approach and recommended retention of the current prohibition :

We noted above that institutionalizing availability of the drug would inevitably increase the incidence of use, even though that incidence might otherwise decrease. Of greater concern is the prospect that a larger incidence of use would result in a larger incidence of long-term heavy and very heavy use of potent preparations.
• • •

If the emotional disturbances found in very heavy hashish users in other countries were to occur in this country, the adverse social impact of marijuana use, now slight, would increase substantially.

We have acknowledged that society, nonetheless, chose to run such a risk in 1933, when Prohibition was repealed. But alcohol use was already well-established in this society, and no alternative remained other than a regulatory approach. In light of our suspicion that interest in marihuana is largely transient, it would be imprudent to run that risk for marihuana today.3

The Commission also noted that the regulatory approaches toward alcohol and tobacco needed revision and that any application of such an approach to marijuana should be preceded by careful study. The Commission concluded by observing :

Future policy planners might well come to a different conclusion if further study of existing schemes suggests a feasible model ; if responsible use of the drug does indeed take root in our society; if continuing scientific and medical research uncovers no long-term ill-effects ; if potency control appears feasible; and if the passage of time and the adoption of a rational social policy sufficiently desymbolize marihuana so that availability is not equated in the public mind with approval."

In some ways, the policy-maker choosing between a regulatory approach and a partially-successful prohibition (which might best be regarded as a "containment" approach) is called on to weigh apples and oranges. He must subtract the public health and welfare burden of current use from what he speculates might occur under some hypothetical regulatory approach; this constitutes the "benefit" of the existing prohibition. Against this, he must weigh the "costs" of the prohibition in terms of reduced freedom of choice; reduced respect for law ; the adverse impact of black market distribution of an unregulated drug on individual (and public) health and welfare; and other, even less tangible, factors.

This is not an easy choice, especially in light of what we still do not know about the consequences of long-term heavy use, and about the efficacy of various regulatory devices.5 Again, however, one must put aside this argument on the merits because it simply is not relevant to the current political debate.' Perhaps this will not be so 5 or 10 years from now, but the regulatory option is clearly foreclosed at the present time both by public and legislative opinion and by international law. The pollsters consistently find that the vast majority of policy-makers and legislators and a substantial consensus of popular opinion is opposed to "legalization." In addition, regulated distribution of marijuana authorized or sponsored by the federal government would be inconsistent with an international treaty to which the United States is a party; and, if adopted by a state, such a scheme would conflict with the federal prohibitions of non-medical distribution of controlled substances.

Implementing a Discouragement Policy : Sanctions for Consumption-Related Behavior

The question on the current agendas of state legislators is actually a very narrow one, susceptible to easy resolution : whether a discouragement policy implemented by prohibition of non-medical availability should be supplemented with legal sanctions against the user—a person who has chosen to use the drug despite the government's efforts to discourage him from doing so and despite its efforts to keep the drug from him. The National Commission on Marihuana and Drug Abuse concluded that sanctions against the user were not necessary to implement a discouragement policy and that their enforcement caused more individual and social harm than could be possibly offset by the consumption thereby deterred. Accordingly, the Commission recommended the repeal of criminal sanctions against consumption-related behavior.

Since the Commission issued its report, ten states have enacted "decriminalization" schemes and similar bills are pending in most other states. Reformers are scurrying about to compile data about the "impact" of these revisions to bring to the attention of the other states.7 The question arises how one is to assess the relevance or "impact" data. Unless some of the conflicting values are neutralized, we are faced with another apple and orange problem.

However, several categorical premises might well preclude sanctions against the consumer no matter what the data show. Thus, even a lawmaker who rejected the earlier libertarian premise by choosing to discourage consumption and to implement it by prohibiting distribution may still believe that :

—The state has no authority to coerce an individual (on pain of legal sanctions) to behave in his own best interest; or that

—The state may not make conduct a crime simply because it is regarded as immoral or because it might injure the actor's health even if, in the aggregate, individual injuries would pose a social burden.

These arguments have frequently been heard in courts in connection with constitutional challenges to mandatory motorcycle helmet laws and the marijuana possession laws.8 On occasion, the courts have invalidated these laws precisely on these grounds ; the constitutional doctrine usually articulated in such cases is that such prohibitions infringe the right of privacy and personal autonomy.'

If no categorical bar is posed against consumption sanctions, the legislator must somehow "weigh" the "benefits" of criminal sanctions against their "costs." Again this is a difficult calculus to construct. On the "benefit" side, one is presumably measuring "deterrence" and its derivative social benefits. One is asking how many fewer persons use marijuana and how many more use it less frequently "because of" the sanctions against use, how many adverse health reactions or behavioral problems are thereby avoided, and how much in the way of public health and welfare resources are thereby "saved."

On the "cost" side, one must consider the individual costs of perceived injustice, loss of liberty, unfairness and stigma associated with involvement in the criminal process. In addition, the policy-maker must consider the institutional costs of disrespect for law when an offense is widely ignored and arbitrarily enforced. Finally, there are the enforcement costs —the criminal justice resources which are consumed in connection with the enforcement of possession laws and the processing of these cases, resources which might have been "better" spent in connection with more "serious" crimes.

This equation can actually be narrowed further since most of the variables which must be "weighed" can be neutralized. For example, no one thinks marijuana use is a very serious matter even though they may disapprove it and wish to discourage it. No one really wants to "punish" marijuana users and put them in jail ; even Senator Eastland—who summoned all the researchers whose findings implicated the drug for the declared purpose of building a case against decriminalization—said he opposed the incarceration of first offenders." The residual questions are fairly straightforward : To what extent do the criminal sanctions presently in force contribute to the discouragement policy? What are the consequences of using the criminal sanction in this way? How much is the increment in discouragement worth and what are we paying?

As the next two chapters will show, the reformers hold all the cards. It is hardly imaginable that a rational legislator who has studied these data could refuse to repeal the criminal sanctions against marijuana use.

1. J. S. MILL, ON LIBERTY.
2. See, for example, the statement of Dr. Robert DuPont, Director of the National Institute on Drug Abuse, Marijuana: Our Next Step, 1 DRUG ABUSE AND ALCOHOLISM REVIEW 14-19 (1978). See also MARIHUANA COMM'N REPORT 131-35.
3. MARIHUANA COMM'N REPORT 148.
4. Id. at 150.
5. See generally DuPont, Marijuana: Our Next Step, supra note 2.
6. For a full elaboration of the case for evolutionary reform, see BoNNIE & WHITEBREAD, THE MARIHUANA CONVICTION 299-304 (1974).
7. For a summary and analysis of the current data, see Chapter 4.
8. See generally, Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 CONN. L. REV. 601 (1974) ; Bonnie and Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 VA. L. REV. 971, 1083-1149 (1970).
9. See, e.g., Ravin v. State, 537 P.2d 494 (Alaska 1975).
10. UNITED STATES SENATE JUDICIARY COMMITTEE, HEARINGS BEFORE THE SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECURITY ACT AND OTHER INTERNAL SECURITY LAWS, MARIJUANA HASHISH EPIDEMIC AND ITS IMPACT ON UNITED STATES SECURITY 12 (1974).

* This essay originally appeared in 30 VIRGINIA LAW WEEKLY DICTA, Number 12 (1977).

* These same "how much" questions are also relevant in determining how best to implement a discouragement policy, as will be explained below.